Reforming the Criminal Justice System Is Not Assured

By Albert R. Hunt | Bloomberg View

Dec. 6, 2015

WASHINGTON — The most interesting political meeting this week may be the one between Valerie Jarrett, the closest confidante of President Obama, and Mark Holden, the general counsel for Koch Industries, the conglomerate owned by the anti-Obama Koch brothers.

This will be their fourth meeting. They correspond regularly and have developed a mutual respect while working on the most sweeping reform of the American criminal justice system in decades.

Addressing the economic and social cost of the huge prison problem — 2.4 million people are incarcerated in America, a higher share of the population than almost anywhere else — is a priority for the White House and the Kochs.

The effort is advancing in both houses of Congress; Speaker Paul D. Ryan of the House of Representatives and Mitch McConnell, the Senate majority leader, are committed to bringing legislation to the floor.

The measures are the product of alliances rarely seen in today’s polarized politics: Senators Charles E. Grassley, Republican of Iowa, and Patrick J. Leahy, Democrat of Vermont; and Representatives Bob Goodlatte, Republican of Virginia and chairman of the House Judiciary Committee, and John Conyers Jr., a liberal Democrat of Michigan.

The effort is spearheaded by the U.S. Justice Action Network, a coalition of leading groups that assembles on the left, the American Civil Liberties Union and the N.A.A.C.P., and on the right, the Faith and Freedom Coalition, and Americans for Tax Reform.

The broad measures would overhaul some of the mandatory minimum sentences enacted in the 1970s and 1980s that have partly caused the prison population to increase 400 percent. The changes would give judges more leeway in sentencing and make it easier to release inmates who aren’t convicted of violent crimes or repeat offenders.

And in an effort to address the exceedingly high recidivism rate, there will most likely be a re-entry provision offering more assistance and incentives for employers to hire former prisoners.

The Jarrett-Holden relationship got off to a good start in their first meeting last spring, when the Koch counsel told the top White House aide that he was with her on “ban the box,” a campaign to persuade employers not to require applicants to check a box if they have a criminal record.

Still, this isn’t a done deal. All sides agree that action is essential by early next year or the issue will get ensnared in presidential politics. The Republican contenders Ted Cruz and Donald J. Trump already warn about the risk of sending criminals back to the streets.

And there is a split over toughening the so-called mens rea, or criminal intent, requirement in criminal law. Some conservatives and business groups want to insert a provision that critics, including the Obama administration, say would make it much harder to go after corporate polluters by forcing prosecutors to prove intent.

The change isn’t in the bill the Senate Judiciary Committee cleared with a big bipartisan vote in October. But the House committee is moving several separate bills, which might be combined on the floor, including the mens rea legislation.

Liberals such as Neera Tanden, the president of the Center for American Progress, said this would be a poison pill dooming the overall measure.

Others suspect that this is the real motive for the Kochs; their company has faced a number of charges and pleaded guilty to a major environmental offense, paying a stiff fine.

But, in an interview, Mr. Holden said that while the criminal-intent change would be good policy, “it’s not do or die” for the Kochs, who still would support legislation that omits it.

“Our primary focus is to change an indefensible two-tier system where the wealthy and connected get much better treatment than the poor,” he said. “And the result is a cycle of incarceration and poverty.”

Most of those on both sides, from Ms. Jarrett to lawmakers, say Mr. Holden’s commitment is authentic.

“No single person has pushed conservatives more on this issue than Mark Holden,” says Holly Harris, the executive director of the U.S. Justice Action Network. “There is no more influential voice for prison reform.”

Sign Up for the Morning Briefing

Get what you need to know to start your day in the United States, Canada and the Americas, delivered to your inbox.